RIAA v. Barker Showdown Slated for January

NewYorkCountryLawyer writes "Judge Kenneth M. Karas has set Friday, January 26, 2007, at 2:15 P.M., as the oral argument date for Tenise Barker's motion to dismiss complaint, in Elektra v. Barker, in federal court in Manhattan. The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public. This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA) and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ). Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not. EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be. Defendant refrained from taking a position on that issue here and here. The DOJ refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". See page 5, footnote 3."

Comments

Best of luck

[RedOregon]

Best of luck to her... looks like this one might be quite important for setting precedents!

"Making available"

[splutty]

I wonder..

If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?

And if I did it on purpose?

And how do we decide whether it's on purpose or not?

Splut.

Re:"Making available"

[Anonymous Coward]

Sorry. Nobody ever said that even making the backup copies was an OK thing to do, remember?

Re:"Making available"

[Pig Hogger]

If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?

More up here. Not only you can copy all the CDs you borrow (be it from a friend or a library), but you can share them online, too (says the Supreme Court).

Re:"Making available"

[91degrees]

If I leave some drugs in the back of a car, and someone steals that car, then later on, he decides to give me a gift of a few thousand dollars, am I really a drug dealer?

Re:"Making available"

[splutty]

Sorry. Nobody ever said that even making the backup copies was an OK thing to do, remember?

Actually :) In the country where I live, that *is* legal. So then you get the added problem if this random person would for example start mailing the things elsewhere.

(Just making a solid real world comparison to the ethereal 'net' world, and yes, it's flawed, I do realize that :)

Re:"Making available"

[4solarisinfo]

Let's take this to another level

If you have your CD's stolen (not copies, but the original CD's) is the person who took them guilty of theft, or copyright infringement?

Surely you could not be guilty of distribution, since they were wrongly taken from you. Giving them away would not be a crime either, as you are giving up ownership willingly. The key to the argument is numbers. When you, and the 2nd party are both using a single purchased copy, at the same time (as opposed to, say, renting and returning a movie) the IP owner's are not getting the money they deserve for creating it.

Giving someone a copy would clearly be wrong, and them taking a copy would clearly be wrong. Courts exist to decide which of you should be punnished, it's what they do in every case of theft.

What courts (lawyers) are up to now is deciding if the person who made the copy, or the person who took the copy is the one who wronged the IP holder. The rest is just mechanics.

Re:"Making available"

[voice_of_all_reason]

The system was designed to require both intent and action necessary to commit a crime, though now just intent can be a crime (attempted murder) or just action (tons of things).

Ideally, no, that act would not fall under copyright infringement by itself without intent.

Re:"Making available"

[oliverthered]

attempted murder requires both intent and an action, just daying your going to kill someone (without making a threat to that person) isn't attempted murder.

In the UK I'm sure you could only be found guilty of conspiricy if a 'crime' had actually happened, now adays just talking about something is enough to get a conspiricy charge.

Re:"Making available"

[radarjd]

And how do we decide whether it's on purpose or not?

That is, of course, one of the main jobs of a jury. The law has spent a few thousand years (as long as there has been law) making determinations as to whether the actions of an individual were on purpose or not. It's not a new problem.

Re:"Making available"

[Anonymous Coward]

"Giving someone a copy would clearly be wrong"

Even to your wife or kids?

"Sorry honey, love to give you copy of the CD, but if do, I'm no better than a thief, and some poor artist may starve.

Re:"Making available"

[stinerman]

Having kept an eye on cpt kangarooski's posts, I believe I can correctly say that there are still civil penalties for unintended copyright infringement. I also believe that making available copyrighted materials for distribution probably isn't illegal since there is no law that I know of that makes attempting to infringe a civil or criminal offense. So saying you'll make a copy for someone isn't illegal. It becomes illegal when you actually make the copy.

Re:"Making available"

[radarjd]

Having kept an eye on cpt kangarooski's posts, I believe I can correctly say that there are still civil penalties for unintended copyright infringement

There's no need to rely on any one person for the penalties for or definition of copyright infringement -- go to the source (or Cornell's helpful pseudo-mirror). I agree with you that there may be penalties for unintended infringement.

I also believe that making available copyrighted materials for distribution probably isn't illegal since there is no law that I know of that makes attempting to infringe a civil or criminal offense.

"Attempt" is not a civil wrong. That is, you can't sue in civil court for "attempted assault" -- you either have an assault, or some other theory. On the flip side, "attempt" can attach to any crime (well, there are probably exceptions that don't immediately jump to mind). There's no need for a statute against "attempted assault" because there's a general definition for "attempt" and another for "assault." In theory, there could be a prosecution "attempted copyright infringement" though I can't immediately think of any set of facts where it would happen in practice.

So saying you'll make a copy for someone isn't illegal. It becomes illegal when you actually make the copy.

I think that statement is true, in the same way that saying you're going to murder someone isn't illegal; you actually have to make a significant step towards the comission of the crime.

Re:"Making available"

[4solarisinfo]

I believe most states, even in the mid-east view marital assets as community property, so who stole it may be tricky.

But yes, if you can't make a backup for yourself, you certainly can't give a copy to everyone in your family, they should each buy one if you listen to in different places/formats at the same time.

Don't forget if you play your radio/CD/IPOD in your cubicle, you're inviolation of the broadcasting rules unless you pay BMI/ASCAP for playing it in a public place without properly licensing it.

If you download from Itunes, they only let you install the song to X number of Ipods, even if you own them yourself too.

Re:"Making available"

[Cauchy]

Intent is necessary but not sufficient for attempted murder. You have to do the action with the intent to kill. And, at least technically, the state needs to prove both. Remember that the guy that bashed Reginald Denny upside the head got off on attempted murder because he claimed he did not intend to kill Denny. So, I guess even the "straight faced" test doesn't apply. Hmmmm. So, by that precedent, you could leave the cd's in the food court with a sign saying, "copies, please have" and still be ok as long as you claim that wasn't your intent.

Re:"Making available"

[hey!]

If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?

The short answer: probably not.

Using this as an analogy for P2P sharing ignores two important ethical and legal factors: (i) what you intent was, and (ii) what results are reasonably foreseeable consequences of your actions.

If somebody picks up your backup CDs that you have accidentally left on the food court table, you clearly have no intent to enable copyright infringement. But if you leave the backup CD's at a kiosk somebody has labelled "CD Swap", a reasonable person might infer you intended to give a third party access.

As for forseeability and its relationship to responsibility, let me give you a true example. My nephew leant his college roommate his laptop to do a last minute paper. The roommate left the laptop open on the floor and went to bed. My nephew came in late at night, and very considerately did not turn on the light. As a result he stumbled over his laptop and broke the screen. The roommtate contended he wasn't at fault, because it was my nephew who stepped on his own laptop.

This story illustrates several valuable points, not the least of which is "neither a borrower nor a lender be." But the key one for us is that we are responsible for the reasonably forseeable cosequences of our actions. A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm. This means that the roommate has a duty not to put it there, and by breaching that duty makes himself responsible for the consequences.

Applying this principle to your analogy, a reasonable person does not expect that carrying backups around will lead to their being stolen; it might happen, but it is not likely. The degree of probability matters; people carry things that are valuable to them around all the time, and sometimes lose them. But I think you're in good shape if you can show that the care you took with the copies is no different from the care a reasonable person takes with property that is his own and in which he places considerable value.

Personally, I'm pro music sharing. But there's no consistent way to argue that copying music on P2P is a copyright infringement but that sharing music on P2P is not. Every right, whether fundamental or statutory, imposes corresponding duties on others to respect that right. The duties aren't limited to direct violations of the right, but extend to taking reasonable care that the right not be violated as a predictable result of our actions.

A good example of the duty of reasonable care is the recent spate of stories about databases of personal information being stolen because they were on laptops or removable media. The argument that absolves P2P sharers from responsiblity for forseeable copying would also absolve the agencies in these cases from responsibility for forseeable identity theft.

There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use. The second would be to show that the kinds of copying done as a result of sharing would not reasonably forseeably include copyright violations. The last way would be to show that you took reasonable steps to guard against improper copying.

The last two arguments are not as attractive as they might seem. A mistaken belief that an act is legal doesn't absolve you of your duty not to aid it, any more than believing that the person who steps on the laptop is responsible makes it OK to leave the laptop on the floor. It's the forseeability of the act that matters, not the foreeability of the act's legality.

Re:"Making available"

[voice_of_all_reason]

Well, it still was your intent in that case (apparently), and you'll be in trouble if they can prove it because you'll be guilty of purjury in addition. But yeah, I may have used a bad example with attempted murder.

Re:"Making available"

[Neoprofin]

If he wanted to pay copyright redistribution fees on all his media he wouldn't even be asking the question.

Re:"Making available"

[DeadCatX2]

Do you eventually "steal" the car back?

Re:"Making available"

[NewYorkCountryLawyer]

That's about it. The RIAA argues yes. You made them available. That makes you a distributor.

If they would read the statute (copyright Act section 106) they'd feel differently, but they don't feel they have to do stuff like that.

Re:"Making available"

[DeadCatX2]

You make an excellent post. Congrats.

As for forseeability and its relationship to responsibility, let me give you a true example. My nephew leant his college roommate his laptop to do a last minute paper. The roommate left the laptop open on the floor and went to bed. My nephew came in late at night, and very considerately did not turn on the light. As a result he stumbled over his laptop and broke the screen. The roommtate contended he wasn't at fault, because it was my nephew who stepped on his own laptop.

A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm. (emphasis mine) Yes, a reasonable person would predict that. But this was a college student who was probably up late writing the last minute paper, and when he was going to bed the open laptop probably provided enough illumination for him to think that it is visible in the dark room easily.

That he was probably tired may have assisted in forgetting about the power-saving mode. Or maybe he was ignorant of power-saving mode at all - you can never tell what someone knows these days.

Though, having been a college student...I would shuffle my feet around if I were in the dark, to avoid stepping on anything that may have found itself on the floor, because I would expect the typical college student to have a disproportionate chance of leaving shit on the floor that shouldn't be there. I'd also use my cell phone to provide the little illumination it could.

A good example of the duty of reasonable care is the recent spate of stories about databases of personal information being stolen because they were on laptops or removable media. The argument that absolves P2P sharers from responsiblity for forseeable copying would also absolve the agencies in these cases from responsibility for forseeable identity theft. That's such a brilliant idea that it almost made me teary-eyed. Excellent comparison.

Re:"Making available"

[91degrees]

Don't know. I'd imagine it was crushed, but I'd just abandoned it anyway since it had negligible value.

Re:"Making available"

[zappepcs]

There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use.

A minor question here: Isn't the RIAA arguing that an MP3 copy (not lossless) is the same as a CD quality (lossless) copy of the music involved in the infringement. If so, this puts recordings off the radio in the same category as MP3 file sharers? Doesn't it? If the music industry says that copying any music from any source without license is illegal, don't they step all over fair use precedents?

MP3 audio is not all that great, despite being 'good enough' for the masses. Is it not possible to argue that an MP3 quality copy of a song is not the same as the artist produced, and therefore not an infringement of copyrights? In example, buying a knock off copy of an iPod is not the same as stealing one, even though a law may have been broken. I think that MP3 formatted songs are, in fact, just a knock off copy, not the original, and therefore the intent, blame, and assignment of illegal activity belongs to the person making the knock off with intent to distribute rather than any of the downline users of that knockoff.

Further example: If I get a fake $20 bill in change at the bank, am I doing something illegal when I use it to pay for dinner later in the day? I'm fairly certain that the law enforcement authorities will try only to catch the forger rather than all who have used the fake $20 bill.

Just a thought....

Re:"Making available"

[NewYorkCountryLawyer]

hey! writes: "There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use."

1. I disagree that there are only 3 logical arguments.

2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as there are a great multiplicity of different kinds of song and record sharing behaviors involving physical copies of phonorecords, cd's, dvd's, cassette tapes, and the like.... some of which might be copyright violations, some of which certainly aren't.

3. If you are arguing that downloading a copy of a copyrighted work through p2p sharing, without a license to do so, for the purpose of obtaining a copy of your own, is a "fair use", I should tell you that I am aware of one case where I think it is fair to say that a similar argument was rejected. BMG v. Gonzalez.

Re:"Making available"

[multimediavt]

Yeah, this is offtopic with the whole murder angle (I hate people that use other crimes as examples when they're not lawyers), but in most states just saying you're going to kill someone (even as a threat) is *NOT* prosecutable unless the threatened person dies of un-natural causes. In some states this has been changed so that a threat of murder is considered to be a crime (I believe it counts as a misdemeanor assault charge or the like), but in most states in the U.S. it is not a crime to say you're going to kill someone. Unless an act of murder is committed it's just words. Albeit, words that could be used against you in a trial.

Re:"Making available"

[honkycat]

1. I disagree that there are only 3 logical arguments.

Do you have examples of other arguments that don't fall in his categories? Note that he's not talking about arguments about whether copyright law is just in this regard, merely that it is, in fact, illegal to violate copyright law as it stands. Perhaps you could claim that copyright law would not withstand a constitutional challenge if it blocked P2P sharing, but that seems pretty unlikely.

2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors [...]

I think it's safe to assume he's referring to the most common behavior which is placing a full, high-quality copy of a song for permanent download and unrestricted replaying of that download.

Re:"Making available"

[hey!]

I disagree that there are only 3 logical arguments.

Well, IANAL, but I think these three classes of arguments are the only ones I can imagine when it can be shown you have provided a file somebody else has copied illegally. I suppose that you could add disputing whether the copying in fact took place.

Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as there are a great multiplicity of different kinds of song and record sharing behaviors involving physical copies of phonorecords, cd's, dvd's, cassette tapes, and the like.... some of which might be copyright violations, some of which certainly aren't.

The existence of non-infringing uses I think we can take for granted. Unfortunately, it's the existence of infringing uses that presents the problem. You can't justify an act harmful to A on the basis that three are many people B who benefit by it.

You may argue that these useful applications shift the costs copyright bargain to the user. But that's a matter for the legislature, which SCOTUS has given wide latitude in these matters.

If you are arguing that downloading a copy of a copyrighted work through p2p sharing, without a license to do so, for the purpose of obtaining a copy of your own, is a "fair use", I should tell you that I am aware of one case where I think it is fair to say that a similar argument was rejected.

Which doesn't surprise me. My argument is that none of the classes of defenses against contributory copyright infringement are any good, at least in typical P2P uses where the facts are beyond dispute.

Disputing the facts does raise an interesting possibility: maybe you could argue that the record companies don't have any actual evidence that any infringement has actually taken place.

The problem is that chances are they do have this evidence, just by looking at your P2P program's logs. But imagine your P2P program didn't log uploads or downloads. They could prove that they (or their autorized agent) downloaded the files, but that's not infringement. If somebody downloads the file with the intent of investigating piracy -- that's non-commercial activity exempted under fair use.

Again, IANAL, but it seems to me they'd have an interesting time quantifying any damage you have done with your sharing activities. You're still on the hook for your copying activities.

Re:"Making available"

[NewYorkCountryLawyer]

1. Yes I do, but I'm actually a practicing lawyer defending these cases: it would be foolish of me to publicly post my arguments before I've put them in play in actual litigations. There's nothing to be gained by tipping my hand.
2. You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that the distinctions among them will be quite important as these cases wind their way through the courts.

Re:"Making available"

[NewYorkCountryLawyer]

Please check out my response to honkycat. I'm not really talking about affirmative defenses, now, such as fair use, waiver, estoppel, unconstitutional damages, etc. I'm talking about plaintiff's prima facie case of copyright infringement. Some types of 'sharing' might be copyright infringement. Other types definitely are not. When we get into trials, and post-discovery summary judgment motions, I am predicting the distinctions among the different types of sharing behavior will be very important.

Re:"Making available"

[cptgrudge]

I'm fairly certain that the law enforcement authorities will try only to catch the forger rather than all who have used the fake $20 bill.

I think they would care if you knew that it was fake and still tried to use it. We can be reasonably sure (in the US, at least) that the currency is not fake. We can't make the assumption that files on P2P networks are legit from the copyright owner.

Re:"Making available"

[hey!]

A minor question here: Isn't the RIAA arguing that an MP3 copy (not lossless) is the same as a CD quality (lossless) copy of the music involved in the infringement. If so, this puts recordings off the radio in the same category as MP3 file sharers? Doesn't it? If the music industry says that copying any music from any source without license is illegal, don't they step all over fair use precedents?

No. True, they'd probably like to be able to say copying music from any source without a license is illegal, but they don't -- at least not seriously. The difference here is not the quality of the copy you make, but the fact that the station has paid to license the work for redistribution. This gives you the right to hear the work, and the closely related right to make unlicensed fair use copies. Copyright is not like privacy: if you let a private fact out of the bag, it is no longer private. Copyright, on the other hand, exists to make dissemination possible. You don't lose any copy rights by disseminating the work.

Further example: If I get a fake $20 bill in change at the bank, am I doing something illegal when I use it to pay for dinner later in the day? I'm fairly certain that the law enforcement authorities will try only to catch the forger rather than all who have used the fake $20 bill.

You are if you use it knowingly. Suppose you get a stack of ten $20s from the bank, and discover that they're all phony. You don't go out and spend them. You call the police; the bank, meanwhile, credits your account for $200 because you did not, in fact, withdraw any money: just worthless paper.

Re:"Making available"

[Wolfger]

A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm.

Nah. I'd take *good* care of my new laptop!

Re:"Making available"

[Wolfger]

I wonder.. If a library leaves a stack of books (ones it owns itself) accidentily on a bookshelf in a public building and someone takes them with them, copies them, and returns the originals, would the library be sueable for infringement of copyright? And if it did it on purpose? Oh, wait... it does.

Re:"Making available"

[hey!]

You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that the distinctions among them will be quite important as these cases wind their way through the courts.

Well, I suppose that if you want to take the statement out of context, you are correct.

If you read back to the start of the thread, I as adressing the poster's assertion that sharing copyrighted music on P2P was no different than having your fair use backups stolen by accident. Somehow, I doubt you would endorse this view ;-)

My original statement was made in the context of sharing copyrighted music over P2P networks like gnutella. Obviously, there are non-infringing uses of P2P technology that don't relate to this scenario at all, e.g. sharing public domain works or uncopyrightable data collections. There may be P2P technologies (e.g. Zune's wi-fi) that enforce licenses as well.

If you want me to generalize my statement, I'd do it this way:

There are only three logically possible ways to argue that offering copyrighted materials on P2P sharing did not contribute to copyright infringement. The first be to show that the plaintiff cannot prove that his rights have been infringed (e.g. if the instances of use were covered by fair use, or if he could not show that copying took place at all). The second would be to show the defendant had no reasonable basis to suspect infringement would occur as a result. The third would be to show the plaintiff took steps that a reasonable person would believe sufficient to prevent illicit copying.

The important point is that you are responsible for the forseeable results of your actions, even if the immediate cause of harm is somebody else.

Re:"Making available"

[hey!]

Well, I think we pretty much agree then. I presume we are talking about the proposition that evidence of sharing does not equal evidence of infringement.

What I'm talking about isn't what you can get away with; it's what the law entitles you to do with copyrighted materials.

Suppose, as a lawyer, a client asked you about a certain P2P application that would be illegal, but impossible to prove. Can you ethically and legally advise him to go ahead just because it would be easy for you defend later? Naturally, I appreciate your duties are far different after the fact.

Re:"Making available"

[honkycat]

1. Yes I do, but I'm actually a practicing lawyer defending these cases: it would be foolish of me to publicly post my arguments before I've put them in play in actual litigations. There's nothing to be gained by tipping my hand.

Great, well, if you don't actually say anything more than "I disagree," then why bother posting on a discussion site? It adds nothing.

As for your other point, I think the other reply to your post said it pretty well... sure, there ARE plenty of clearly legal uses of P2P sharing but it was plainly obvious which sort was being discussed.

Re:"Making available"

[NewYorkCountryLawyer]

I'm sorry that you feel that having an actual lawyer who is actually working on these cases, who can report to Slashdot readers with first hand information and analysis as to what is going on in these litigations, is not worthwhile, just because he cannot share with you his innermost thoughts and confidential legal strategies in advance of their being implemented in the litigation.

And I'm sorry you fault me for pointing out that there are many different types of file sharing behaviors, rather than just one, as the post to which I was responding had suggested. And if you know which ones are "clearly legal" and which are not, you are pretty good, since there is not a single lawyer in the country who can say that, since not a single contested case has been decided regarding any of them, except for the partially contested case of BMG v. Gonzalez, in which a defendant admitted to downloading and making copies of 30 song files, arguing that it was a "fair use" to do so, and the Court disagreed with the defendant's "fair use" assessment.

Re:"Making available"

[honkycat]

Having an actual lawyer say "no" without any useful explanation on that point is little better than having a troll say the same. Seriously.

Re:"Making available"

[honkycat]

Also, let me just say, I don't actually mean to call you a troll or ask you to stop posting, because it IS good to have such opinions here. However, it's not enough to get a free pass to just answer yes/no questions with authority when, as you point out, there is still a lot of debate at all levels of involvement in these questions. I am not any better informed for having been told by a lawyer that he doubts there are no other ways to defend these cases -- all I could possibly do is give hearsay that "oh some guy on slashdot who claimed he was a lawyer said x."

Re:"Making available"

[NewYorkCountryLawyer]

I have never asked anyone to accept anything I say as gospel.

The GGGP said there are only 3 possible arguments.

I responded that there are many more than 3.

If you want to believe that there are only 3 possible arguments, that's your prerogative.

Re:"Making available"

[honkycat]

Ok, but it seems like a pretty widely encompassing three. Note that he's not saying there's only three ways to defend such a case. He's arguing that if you want to claim P2P copying is legal. There are a lot of illegal acts that are successfully defended every day. His categories of defense seem pretty broad and I have a hard time imagining how you could argue that the act of making or enabling a copy to be made is legal without showing one of them. I was hoping for some insight on this point, but I guess I'll have to wait until your day in court. Good luck.

Re:"Making available"

[NewYorkCountryLawyer]

Well if you want to have some fun with it why don't you start imagining all the possible p2p sharing behaviors, analogizing to what people do in the real world with song files that are on a cd? And then when you've done that, see if you can add a few more that are behaviors which one can do on the internet that one cannot do with physical cd's. I can think of quite a few such behaviors, but each time I start thinking of them, I start thinking of different factual wrinkles, and then a few more.... and I'm one of the least creative people I know.

And then once you're convinced you've reached your magic number, finite, total universe of such behaviors, since you seem to want to believe along with the GGGGGP that there is such a number, start thinking of all the possible defenses for each factual scenarios.

Wouldn't that be more constructive than debating with me as to whether there is a magic number of "3" or "7" or "66" or "144"?

Re:Bah!

[Suzumushi]

I believe the term is "justice to the highest bidder." And I have to agree, sadly...

Best of luck to those intrepid souls who are doing their best to defend our interests though. Who knows, maybe we'll get lucky. There's always an outside chance that the judge will be an honest one who actually understands technology.

Re:Feh!

[Anonymous Coward]

Not to mention that the U.S. Department of Justice has decided to get involved on the plaintiff's (The MPAA's) side. What. The. Fuck.

If you are a U.S. citizen, your Federal tax dollars are being used to help the MPAA wage its civil lawsuit here. You knowm, if I filed a civil lawsuit against someone, it sure would be nice if the Federal government decided to get involved and backed up my postion. But it sure would not be fair.

"Making Available"..

[aero2600-5]

She's in trouble for "Making available"? FUCK! Quickly! Close down all those public libraries! They're "making available" all those copyrighted books! Anyone could take one home and photocopy it, scan it, or even copy it by hand.

This argument is full of holes.

Aero

Re:"Making Available"..

[Anonymous Coward]

Making Available... Sounds awfully like a pre-crime to me. Better send out the Fed's ...

I do like how the DOJ, has refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". It sounds like the DOJ is only sticking its neck out so far.

I have to wonder if the **AA's realize how idiotic they are making themselves look. Of course that would never stop them from doing what they're doing, but in making more enemies than friends is a sure-fire way to destroy their future.

Re:"Making Available"..

[j00r0m4nc3r]

Yeah this is iffy. Copying a copyrighted book without permission is obviously illegal. But you can take the book home without making a copy. So the method of transmission from libary->house doesn't involve a copy operation. But distributing things electronically is intrisincally a copy operation. So you can't say "I'm going to download it, but NOT make a copy." because you have already made a copy by downloading it. I can see lawyers ending up in some sort of infinite loop and exploding from this...

Re:"Making Available"..

[shark72]

"She's in trouble for "Making available"?"

Not quite -- for making unauthorized copies available. It's just two words, but an important distinction. If the library made their own copies and sold or lent them, there'd be an issue. But (much to the RIAA's chagrin, I'm sure), you can generally lend, sell, trade, etc. originals as much as you like. I know that many people reading this will say "what's the big deal if I lend the CD I bought to my friend Billy, vs. burning him a copy?" but the law has countless examples of many seemingly meaningless distinctions.

"FUCK! Quickly! Close down all those public libraries! They're "making available" all those copyrighted books! Anyone could take one home and photocopy it, scan it, or even copy it by hand."

You're being sort of silly here, hopefully on purpose. Stores "make available" books and CDs, as well.

If you borrow a CD from the library, take it home, rip it, and put it in your share directory, then you're running a significant risk of being your very own John Doe at some point down the road, because the way the record industry sees it, somebody might use a P2P program to download it from you (thus making their own unauthorized copy). But the library would not be liable.

Re:"Making Available"..

[NewYorkCountryLawyer]

shark72 writes in response to "She's in trouble for "Making available"?" as follows:

"Not quite -- for making unauthorized copies available. It's just two words, but an important distinction."

Actually, shark, you're giving the RIAA too much credit. Had every single one of the songs been an authorized copy, as for example one purchased lawfully from iTunes or a similar entity, the RIAA would still be pursuing its suit against her. The Hotaling case dealt with unauthorized copies. The RIAA, however, does not know or care whether the copies are authorized or not. Its theory is that by having the files in a shared files folder you are a "distributor".

Its theory is nonsense, of course, as I expect Judge Karas has figured out.

Re:"Making Available"..

[Tmack]

Not quite -- for making unauthorized copies available. It's just two words, but an important distinction. If the library made their own copies and sold or lent them, there'd be an issue. But (much to the RIAA's chagrin, I'm sure), you can generally lend, sell, trade, etc. originals as much as you like. I know that many people reading this will say "what's the big deal if I lend the CD I bought to my friend Billy, vs. burning him a copy?" but the law has countless examples of many seemingly meaningless distinctions

Bits for thought: what's to prevent someone from putting the CD in their computer drive, and having it set as a shared drive? Sure, you would have to d/l the raw track, which would be an order of magnitude larger than if it were compressed to mp3/ogg/whatever, but by doing so, no "Copy" is being made until the download is sent to the other computer and then only if saved to disk. Would fair use allow someone to directly stream from the shared CD, since it is the original media and not a copy (besides the intermediate transmitted data going from the drive through the computer, network, other computer, and out the soundcard, which is at least partially explicitly allowed by recent adjustments to the fair use clauses)? Only the one, original copy is in existance, and thus this is more like your example of letting billy borrow the CD itself. What if the share is piped through compression filter to compress it on the fly or before being sent, would that change things?

Tm

Re:Feh!

[NewYorkCountryLawyer]

It is extremely weird that the US government would intervene in a private copyright dispute.

But take comfort in this:

The DOJ did NOT support the "making available" argument at all; it expressly distanced itself from that argument on page 5, in footnote 3, indicating that it has NEVER prosecuted someone for "making available".

Acronym Heaven

[FreakyLefty]

Is there a difference between the DOJ and the USDJ? Or is there just a lack of editing?

Re:Acronym Heaven

[NewYorkCountryLawyer]

It's my mistake. Sorry about that. Don't blame Slashdot. I used 2 different abbreviations for the same thing. DOJ (US Dept of Justice) = USDJ (US Dept of Justice).

Re:Acronym Heaven

[FreakyLefty]

Thanks. Not being American I wasn't sure if I'd missed something in your justice system.

Civility on Slashdot. Whatever is the world coming to?

Re:Acronym Heaven

[NewYorkCountryLawyer]

FreakyLefty wrote: "Thanks. Not being American I wasn't sure if I'd missed something in your justice system. Civility on Slashdot. Whatever is the world coming to?"

The American justice system used to be characterized by quite a bit of civility, sometimes to the consternation of clients who wanted a 'pound of flesh'.

That was before a new breed of lawyers came along who will do anything their client tells them to.

Re:Acronym Heaven

[FreakyLefty]

What's it like in your line of work? Do most lawyers live up to the stereotype? Is dealing with them as unpleasant as popular opinion makes out? It's very easy to just categorise all lawyers as Them and get all narky about it, but it's very rare you actually get a chance to ask someone about it. Any tales from the front?

Re:Acronym Heaven

[NewYorkCountryLawyer]

Lawyers have a bad press. In fact there are good people in the profession and bad people in the profession.

One thing I wonder about with the RIAA lawyers, when they are at a cocktail party and someone asks them what kind of law they practice, what do they say?

"I sue children, disabled people, dead people, working people, people on welfare, grandmothers, people on social security, people on disability, the working poor, students, and regular middle class people, for copyright infringements they didn't know they were committing, based upon a theory of copyright infringement no one has ever seen before."

Do you actually win those cases?

"No, but we wear people down because our clients have an endless amount of money to spend, and the people we are suing usually don't."

Do you find this kind of work satisfying?

"Yes I do, it brings me back to my childhood, when I was being beaten up by the schoolyard bully, wondering how I could take my revenge. Now I have found the way.... I have become the schoolyard bully, except that I can cause more harm, fear, and humiliation than he ever did."

And does this type of work pay well?

"Yes it does, until, that is, our clients fire us in favor of an even more vicious law firm, at which time we'll have a pretty difficult time finding replacement work, in view of the lack of esteem in which we are held throughout the profession."

Not just books

[tpjunkie]

You can borrow Audio CDs and DVDs from most libraries too!

Re:Not just books

[MostAwesomeDude]

My younger sister does just that, as pop music costs about $20 per CD, and our public library stocks modern pop music under an initiative (people can request CDs to be purchased with bond money in a sort of tally system.) So, if she wants to see if a CD is worth buying, she'll check it out for a few days, to see if she likes it. I personally find it helpful for finding classical and old bebop that's out of print or simply not stocked by the braindeads at Sam Goody's.

Is the library to be blamed for "making available" copyrighted works? I mean, after all, the agreement on my library card only says that I have to return materials on a certain timeline, or renew them every week. It says nothing about whether or not I'm allowed to excerpt them (explicit fair use), rip music and sample it for a remix (implied fair use), or copy media wholesale and upload it to a filesharing network (copyright infringement). How liable are libraries?

Interesting. Then why...

[Opportunist]

Then why are you liable for "making available" content when using a filesharing tool without knowing jack about it, while you're not liable for having a spambot on your computer? The damage is at the very least the same, and in both cases the intent is missing. You didn't want to (and you didn't know) that you're spreading spam or content.

No intent. Why are you liable for one while you're not for the other?

Re:Interesting. Then why...

[voice_of_all_reason]

Hey, I don't agree with it. I was just pointing it out.

As you've demonstrated, the effect of intent on being charged with a crime varies depending on the crime. Specifically, how much "they" dislike the crime.

Re:Interesting. Then why...

[multimediavt]

Ooo...you're on shakey ground with that ascertion. There is certainly intent assumed when you willfully download and install a file sharing tool. Ignorance of its capabilities is *NOT* a defense when you willfully sought out, downloaded, installed, clicked past the EULA and ran a file sharing app on your computer. That's completely different from a piece of spyware being added to your machine without your knowledge due to a vulnerability or a piece of code that was toughted to be for another purpose that installed a bot client on your machine.

Re:Interesting. Then why...

[Opportunist]

In many countries, the download of software, even copyrighted software, is not a crime.

It is often not stated in the EULA (which are also, in some countries, by no means binding) or in the manual of P2P programs that you are automatically offering what you are downloading.

So many people run P2P tools with no knowledge behind the idea of P2P (similar to their general knowledge concerning computers, IP laws and all the other little funny things that clog the legal system) and offering copyrighted material without their knowledge and consent. I'm quite sure that many of them, sitting on metered lines and paying by the MB transfered, would do their best to cease offering copyrighted material to others.

Re:Feh!

[Overzeetop]

I noticed that in the summary (didn't rtfa...got to get some real work done today). What is the validity of using the "this law has never been applied before" argument? Clearly, the selective and occasional application of laws is pretty commonplace (speeding citiations, for example). To have a significant history of publically "known" instances, none of which have been prosecuted - does that offer any real defense in a criminal case? Does the court look upon the defendent as a persecuted individual, or is the response simply, "sucks to be you."

In a clear cut violation - a letter of the law case - I would anticipate the latter response, but maybe where there is significant lattitude in interpretation the (lack of) precident may hold water.

(see, once we know you know what you're talking about, you'll never rest here on slashdot ;-)

Re:Feh!

[NewYorkCountryLawyer]

In a "statement of interest" the US has to say why it has "an interest" in the case. DOJ said the reason it had an interest in the argument EFF was making -- that ephemeral transmissions could never implicate the "distribution" right as opposed to reproduction and performance rights -- was that it if accepted it could jeopardize ~100 former prosecutions and ~100 pending prosecutions of "pirates". The argument EFF was making was not related to the "making available" claim advanced by the RIAA, and the US was just making it clear that the only issue they were addressing or "interested" in was EFF's argument, an argument which the defendant -- Ms. Barker -- had not made and did not feel was necessary for the Court to reach.

Re:Feh!

[Anonymous Coward]

The MPAA is an American organization representing American companies who are run by American citizens (or so we're led to believe). Even so - The federal government is responsible for protecting its citizens, and in the current case, the citizens running the MPAA are accusing other American citizens of stealing from them (or of some other violation of their "rights"). So technically, it makes sense - the Federal government is protecting the citizens of the MPAA from the public mob of people trying to steal from them.

Understand, I'm pretty sure the MPAA is a sign of the apocalypse, or at least a sign that the United States is suffering the same fate as the Roman Empire, but logically, the Government is in fact doing what it's supposed to do. While it is a civil suit, the DOJ is just affirming their duty to uphold and enforce the laws as dictated by the lawmakers, which they HAVE been and ARE doing. In short, they're taking the MPAA's "side" because they have to - by law -. It's a civil case based on 'criminal' activity, and the government is saying that yes, what people are doing to the MPAA is criminal according to the law. So if you're going to be pissed about it, get pissed at your lawmakers and kick them in the ass to do something about the laws (DMCA, etc.) that were written FOR the MPAA so they could do this to YOU.

Distribution vs. Reproduction/Performance?

[DeadCatX2]

That's a very neat question right there.

Is YouTube distributing the videos, or reproducing/performing them for the public?

In a way, the only real difference is scale. Public performance is limited by the size of the arena, which largest venues are still orders of magnitude smaller than YouTube's possible audience. YouTube can be used by anyone in the world with a connection to the Internet and a reasonable PC.

So, YouTube could potentially target more people more easily than a public performance. But a public performance is guaranteed to impact a number of people (all those within hearing or seeing distance), whereas a YouTube video might never be watched by anyone.

Forgetting for the moment the legality, or lack...

[almost entirely lega]

As to P2P filesharing, I'd take the probably here unpopular view that it is a plain violation of the rights of the artists and/or recording companies. That notwithstanding, I'm surprised that the complaint is even arguably sufficient. The sole paragraph that identifies the acts the defendant allegedly committed seems to me to lack sufficient specifics. That makes it all the more surprising that the RIAA would be correct, if it is when it argues that in three previous cases these specific allegations have been found to survive a motion to dismiss. http://www.ilrweb.com/viewILRPDF.asp?filename=elek tra_barker_oppositiontomotion - see pages 8-9. If the pleading standard is as "liberal" as the RIAA says it is, it ought not be. That having been said, it seems to me silly that this is the level at which these cases are argued. If the defendant was file sharing, the RIAA should come forth with specific allegations...and then the case can quickly get to the substance, rather than spend time - and presumably both sides' money - on procedural irrelevancy. The obvious cure to the motion to dismiss, if the RIAA has facts to back their case, is an amended complaint with more specifics. Sorry if that's less technically and more legally based than normal here.

Attempt example ...

[multimediavt]

This is hypothetical and would require an OS level DRM scheme to be plausible, but an OS level DRM scheme could detect an "attempt" to copy a protected piece of content whether successful or not and report said attempt to the copyright holder or authorities. You could see prosecution occur at that point, but that would challenge the "innocent until proven guilty" aspect of the U.S. legal system (everywhere but New Orleans that is). How do they know it wasn't a kid (under 12) or just a mistake that caused the alert to be sent? This DRM scheme doesn't exist today, but I'm sure it's something the RIAA and MPAA would LOVE to see.

Radio Stations

[emil10001]

The difference here is not the quality of the copy you make, but the fact that the station has paid to license the work for redistribution.

AFAIK radio stations don't pay for that right. In fact, the record companies generally send out advanced copies of CD's to the radio stations to play. Radio is a free advertisement for the record company of their artist.

There is a big difference between P2P downloading and radio, in that with the P2P you can download the entire album and play it over and over again at your leisure. This is not something you can do with radio.

Re:Radio Stations

[drinkypoo]

Radio stations pay to play music, yes. It goes into a general fund defined in the audio home recording act and I have no idea how it is disbursed (but the act says it goes to "interested parties" - I'm interested in money! It says something about copyright too, but I don't think it actually says copyright holders. I forget for sure though.)

Re:Forgetting for the moment the legality, or lack

[shark72]

"As to P2P filesharing, I'd take the probably here unpopular view that it is a plain violation of the rights of the artists and/or recording companies."

I think that's a mischaracterization. I'd wager that even the most rabid P2P enthusiasts recognize that copyright law exists and that making unauthorized copies via P2P is a violation of same; the common view is that we don't need to pay attention to those rights for one or more reasons:

1. Artists simply do not deserve the same level of respect that is owed to, say, an OSS developer who releases code under the GNU license. ie, all artists are equal, but some are simply more equal than others.
2. Artists already make enough money. P2P lets you even the score a bit.
3. Artists don't make enough money, because the record companies don't let them have any. That is, this is an acceptable exemption from "two wrongs don't make a right."
4. Wouldn't have bought it anyway. Since it's so readily available via P2P, why would I?
5. Most of the money goes to various record company employees rather than the artist, not a single one of these employees had any effect on the production of the music. The record company isn't needed any more. In fact, I regularly produce, engineer, master, distribute and promote hit music in my basement.
6. If the artists are in it for the money, they're businesspeople, not artists. I don't owe them a living.
7. I instead choose to fund artists by going to concerts and buying t-shirts. This means that I've gone to 50 concerts this year and bought 150 t-shirts. It also means that I have to restrict my music piracy to only those bands and artists who play in my area and/or sell merchandise.

I may have missed a few, but I think that covers about 90% of the populace.

Re:Forgetting for the moment the legality, or lack

[almost entirely lega]

I appreciate the points you're making, and I'm sure they're widely shared here - however, I couldn't disagree more with the suggestion that artists aren't entitled to earn their livings, through their creative efforts, with the same respect and legal protection as is anyone else. Further, if you decide that one class of individuals (you picked artists who sell their music) isn't entitled to legal protection, where do you stop? And how do you decide who gets protection? Those who are popular or whose work is popular? Do you take a vote?

Further, implicit in your argument is a suggestion that the record companies are not entitled to a return on their investments in the creative process and their efforts to distribute product legally - and argument I'd also reject.

Disclosure (it's on my website, but probably should be included here): I'm a member of and long have been active in the union which represents the interests of many performers, including recording artists.

Re:Forgetting for the moment the legality, or lack

[shark72]

Agreed with your points (the list was my summary of popular opinion around here, not a reflection of my own views). I think it's a common belief around here that software developers (in particular, OSS developers) should have their rights respected to a greater extent to artists or record companies, apparently for the primary reason that we have empathy toward OSS developers, whereas we don't feel that much of a connection with people in the music industry (no matter what side of the mixing board or mahogany desk they're on). But as you put it, that's a really dangerous slippery slope.

When the focus is on record company management, rather than talent -- there's a similar slippery slope. It may seem perfectly reasonable to ignore somebody's rights once they make over a certain arbitrary amount of money; I think this is because the perception is that anybody who makes more than $BIGNUM is likely greedy, or undeserving of that wealth, or perhaps would not miss it. But I'm a big believer in karma here... my definition of $BIGNUM may be completely different than yours, and if I base my decision whether to violate somebody's rights based on my perception of their wealth, there might be somebody out there who feels perfectly at ease violating my rights because my wealth is higher than their arbitrary definition of $BIGNUM.